The Implementation Rule of the PRC Individual Income Tax (“IIT”) Law has been officially announced and an update about certain preferential IIT regulations.

Highlights

The Implementation Rule of the PRC IIT law has been officially announced by the State Council on 28 December 2018. (Hereinafter as Circular No. 707 issued by the State Council, “Implementation Rule”). This means that the new PRC IIT law has been officially implemented along with the final Implementation Rule. Moreover, China’s Ministry of Finance (MOF) and the State Administration of Taxation (SAT) released Cai Shui (2018) No. 164 to further specify the transitional measures relating to certain preferential IIT regulations during the transitional period.

Summarised below are the key revisions between the final Implementation Rule and the Draft Implementation Rule released on 30 October 2018. The transitional measures relating to certain IIT preferential regulations are also highlighted.

Recap of key changes

Five-year rule” to “Six-year rule”
The “Five-year rule” has been changed to the “Six-year rule” in the final Implementation Rule. At same time, a full break of continuous years would start as long as non-China-domiciled individuals take a single consecutive 30 day absence outside China in a calendar year. This change would definitely attract foreign talents to come and work in China. It should be noted that the single consecutive 30 day absence should be within a calendar year which excludes a circumstance that the date of entry and the date of exit fall into two calendar years.

Calculation of taxable income derived from personal production and operation
The Implementation Rule specified that Allowed Additional Itemized Deductions (“AAIDs”) is applicable to those who generate incomes from personal production and operation rather than receiving a comprehensive income. That is to say, when computing the taxable income of such individual, Annual Standard Deduction (“ASD”) of RMB60,000, Itemized Deductions (three social security contributions and one housing fund), AAIDs and other deductions are allowed as regulated by the New PRC IIT law. AAIDs are allowed to be deducted from annual comprehensive income during Annual Tax Clearance Process (“ATC”) rather than on monthly basis.

Calculation of foreign sourced income and foreign tax credit (FTC)
Compared to the Draft Implementation Rule, the final one deleted the clause “foreign sourced losses arising from the operation of a business (including where the business is conducted in the form of a sole proprietorship or partnership and an individual)” are not allowed to offset against domestic sourced business income. Detailed ruling may be published lately.

The FTC would still be calculated on a “per country (region)” basis, while the calculation formula of FTC limitation is not shown on a “per country (region)” anymore.

Exchange rate application for incomes earned in foreign currency
For incomes earned in foreign currency, they shall be converted into RMB at the central parity exchange rate on the last date of the month before tax filing. Where relevant PRC IIT has been paid on a provisional basis, it is not necessary to make any conversion during the ATC process. However, additional PRC IIT should be paid through the ATC process, the central parity exchange rate on the last date of the preceding calendar year should be adopted for calculating taxable income in RMB.

Circumstances where taxpayers should go through ATC process

where a taxpayer derives general income in more than two places, and after deducting AAIDs, the balance of his annual comprehensive income exceeds RMB60,000;

where a taxpayer derives one or more incomes from independent incomes, incomes from author’s remuneration, and royalty incomes, and after deducting AAIDs, the balance of his annual comprehensive income exceeds RMB60,000;

where the amount of tax paid in advance during the calendar year is lower than the amount of tax payable; and

where the taxpayer applies for a tax refund.

PRC IIT calculation methods based on the New PRC IIT Law

The methods for calculating IIT for PRC tax residents’ salaries and wages, and independent incomes on monthly “Cumulative Withholding and Pre-paid basis” and for Non-PRC tax residents’ salaries and wages, independent incomes, incomes from author’s remuneration and royalty incomes have been summarized as below:

The calculation method for PRC tax residents’ salaries and wages

PRC tax residents are subject to IIT on monthly “Cumulative Withholding and Pre-paid basis”. The calculation formula is as below:

Note: if the tax to be withheld and prepaid for current month is negative, it is not allowed to apply for a tax refund. When the final tax payable becomes negative by the calendar year ends, the taxpayer should make tax adjustments for his annual comprehensive income through the ATC process.

Level

Cumulative Taxable Income (RMB)

Withholding Rate（%）

Quick Reckoning Deduction

1

No more than 36,000

3

0

2

From 36,000 to 144,000

10

2520

3

From 144,000 to 300,000

20

16920

4

From 300,000 to 420,000

25

31920

5

From 420,000 to 660,000

30

52920

6

From 660,000 to 960,000

35

85920

7

Above 960,000

45

181920

Illustrations:

Example 1:

Employee A’s base salary is RMB12,000 per month in 2019, the MSD is RMB5,000 per month, the Special Deductions (three social insurances and one housing fund) are RMB2,000 per month. He only claimed for AAIDs for one item: children’s education (i.e. RMB1,000 per month) from January 2019. His tax to be withheld and pre-paid on monthly basis are as below:

Cumulative income for the whole year is RMB48,000, the withholding tax rate of 3% would be applicable till the month of September 2019, and effective from October 2019, the withholding tax rate of 10% would apply. The tax to be withheld and pre-paid for the first 9 months remains same, RMB120 per month.

Example 2:

Employee B’s base salary is RMB30,000 per month in 2019, the MSD is RMB5,000 per month, the Special Deductions (three social insurances and one housing fund) are RMB4,500 per month. He only claimed for AAIDs for two items: children’s education and dependent care for the elderly (i.e. RMB2,000 per month) from January 2019. His monthly tax to be withheld and pre-paid on monthly basis is as below:

The cumulative month to date taxable income for February is RMB37,000 and the withholding tax rate of 10% would apply. As such, the tax to be withheld and pre-paid would be increased effective from February 2019 and onwards.

Even though the monthly income remains the same, the withholding tax rate and cumulative taxable income would be changed. The reason is that the applicable withholding tax rate is determined by the cumulative month to date taxable income, the higher one would be applied step by step.

The calculation method for PRC tax residents’ independent income, the income from author’s remuneration and royalty.

1. To calculate the taxable income

The taxable income shall be the above three incomes less allowable deductions. In particular, the taxable portion shall be 70% of the total income from author’s remuneration.

Where the income does not exceed RMB4,000, the allowable deduction is RMB800; and while if the income exceeds RMB4,000, the taxable portion shall be 20% of the total income.

2. To calculate the tax to be withheld and pre-paid which is equal to taxable income times the withholding rate.

For the independent income: three levels of withholding rates would be applied (Please refer to Table 2 PRC IIT Withholding Rates); for the income from author’s remuneration and royalty, the flat withholding rate of 20% shall apply.

Table 2 — PRC IIT withholding rates

Level

Cumulative Taxable Income (RMB)

Withholding Rate（%）

Quick Reckoning Deduction

1

No more than 20,000

20

0

2

From 20,000 to 50,000

30

2000

3

Above 50,000

40

7000

Example 3:
If a PRC tax resident earned RMB2,000 income from providing his personal services, the tax calculation would be as below:

As stated above, the independent income are subject to PRC IIT based on the Table 2 and the income from author’s remuneration and royalty are subject to the flat rate of 20%. However, during the ATC process at the year-end, such three types of incomes, as part of annual comprehensive incomes, should be subject to a progressive tax rate ranging from 3% to 45%. Therefore, it is very likely that a tax refund should be applied through the ATC process.

Moreover, Value-Added Tax (“VAT”) would be imposed for the individual taxpayers who earned incomes from providing their personal services. They should file VAT returns and apply for original VAT invoices by themselves. The paying unit (in most cases it is an enterprise) has withheld and paid PRC IIT for the individual taxpayers, so the enterprise could use the original IIT payment receipts as a proof for pre-tax deduction before Corporate Income Tax (“CIT”). While there is still a potential risk the individual taxpayer does not file VAT return eventually, it is not allowed to deduct relevant cost before CIT without support of original VAT invoices.

The calculation method for Non-PRC tax residents’ salaries and wages, independent income, the income from author’s remuneration and royalty.

Where Non-PRC tax residents earned one or more than one of the above incomes, they should be subject to PRC IIT based on the Table 3 on monthly basis or when the tax event occurs.

Before 31 December 2021, annual performance bonus obtained by a PRC tax resident can still enjoy the preferential tax treatment, that is, it would not be combined into annual comprehensive income and the applicable tax rate of which is determined by 1/12th of the total amount of annual bonus.

While effective from 1 January 2022, such annual performance bonus should be combined into the comprehensive income and subject to the annual progressive tax rate.

2

Economic Compensation / Severance Payment

Guo Shui Fa【1999】No. 178 & Cai Shui【2011】No. 157

One-off economic compensation/severance payment would not be combined into annual comprehensive income. The following calculation method mentioned in Circular No. 178 still applies.

The first portion which falls within three times the average wage of employees at the locality in the preceding year (“the threshold”) shall be exempt from PRC IIT charges. The remaining portion exceeding the threshold would not be included to the annual comprehensive income. It could be taxed separately by applying the annual progressive tax rate.

3

One-off Subsidy Income
for Early Retirement

Guo Shui Fa【1999】No. 58

The special tax treatment mentioned in the Circular No. 58 is still applicable under the New PRC IIT law.

Before 31 December 2021, equity incentives such as share options, stock appreciation rights, restrictive shares, share incentive etc. (hereinafter referred to as “equity incentives” obtained by a resident individual which satisfy the relevant criteria stipulated in the relevant circulars mentioned left would not be included in the annual comprehensive income.

The special tax treatments mentioned in the these Circulars are still applicable under the New PRC IIT law.

5

Tax-free Benefits received by foreign individuals

Cao Shui【1994】No. 20、Guo Shui Fa【1997】No. 54、Cai Shui【2004】No. 29

During the period from 1 January 2019 to 31 December 2021, a foreign individual who satisfies the criteria of a PRC tax resident may opt to enjoy current tax exemption treatment (housing subsidy, language training subsidy and children’s education fees) mentioned in the tax circulars left or choose AAIDs claims under the New PRC IIT law. The option made by a foreign individual shall not be changed within a tax year.

With effect from 1 January 2022, foreign individuals shall cease to enjoy tax exemption treatment as per the three tax circulars and shall make AAIDs claim under the New PRC IIT law.